Suspicionless Searches: Florida Targets Welfare Recipients

Submitted by Mike Appleton, Guest Blogger

The Florida legislature has been accused of doing nothing to address the state’s serious unemployment problem.  But the cumulative output of the recently completed 2011 session will keep constitutional lawyers busy for quite some time.  One case in point is a bill signed by Gov. Rick Scott on May 31st that is certain to face a legal challenge.  Public law 2011-081, set to go into effect on July 1st as Section 414.0652 of the Florida Statutes, requires every Florida resident who applies for benefits under the Temporary Assistance for Needy Families (TANF) program, the federal successor to the former Aid to Families with Dependent Children (AFDC) welfare system, to submit to drug testing for controlled substances.  The cost of the testing must be paid by the applicant and a positive result will disqualify the applicant from receiving benefits for one year.  The new law raises serious concerns under the Fourth and Fourteenth Amendments to the U.S. Constitution and their counterparts in the Florida constitution, including the personal right of privacy enshrined in Article I,  Section 23 of the latter document.

For most of our history, Fourth Amendment protections were thought to apply only to criminal proceedings, but in 1967 the U.S Supreme Court recognized their application to non-criminal government searches as well. Camara v. Municipal Court, 387 U.S. 523 (1967).  Early subsequent cases concerned primarily commercial enterprises.  For example, in Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978), the Court held that OSHA could not conduct a search of certain work areas for safety violations without a  warrant and that portions of the OSHA statute authorizing warrantless searches were unconstitutional.

Over the past several decades, the Court has gradually endorsed exceptions to the requirement that civil searches must meet strict Fourth Amendment standards.  The so-called “special needs” doctrine, first expressed in New Jersey v. T.L.O., 469 U.S. 325 (1985), involves a three-prong test to determine the legality of a warrantless civil search:

(1) There must be a compelling government interest unrelated to criminal law enforcement that requires the search;

(2)  There must be a determination that imposing the burdens of establishing probable cause and securing a warrant would jeopardize the government’s interest; and

(3) The government’s interest must be balanced against the privacy interests of the search subject under a reasonableness standard.

Every Supreme Court decision to date upholding suspicionless drug testing has involved either school children (e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995), drug testing of high school athletes) or classes of employees among whom drug abuse creates serious risks to public safety (e.g., Skinner v. Railway Labor Executives Ass’n., 489 U.S. 602 (1989), drug testing of railroad employees following accidents).

The public safety component of the special needs test was emphasized by the Court in Chandler v. Miller, 520 U.S. 305 (1997),  a case whose irony is unlikely to be appreciated by the Florida legislature.  The Court in Chandler struck down a Georgia statute mandating urine drug testing as a condition to running for specified state offices, concluding that the state had not demonstrated any special need, let alone one sufficiently compelling to overcome expectations of privacy and to vitiate grounds for individualized suspicion.  And the Court added, “…where, as in this case, public safety is not genuinely in jeopardy, the Fourth Amendment precludes the suspicionless search, no matter how conveniently arranged. ” 520 U.S. at 523.

The single reported case involving a state’s effort to drug test welfare recipients is Marchwinski v. Howard, 113 F. Supp. 2d 1134 (E.D. Mich. 2000), rev’d, 309 F.3d 330 (6th Cir. 2002), reh’g en banc granted, judgment vacated, 319 F.3d 258 (6th Cir. 2003).  In that case a federal district court enjoined implementation of a pilot project to administer drug tests to applicants for welfare benefits under Michigan’s version of TANF, squarely concluding that the state had not demonstrated any special needs involving public safety.

The Florida statute suffers from the same infirmities that doomed the Georgia and Michigan laws.  Indeed, the Florida law does not even pretend to address public safety concerns.  And the official staff analysis of the legislation contains a laundry list of potential barriers to enforceability, including violations of the Florida and U.S. constitutions and inter-statutory conflicts.

So what does the Florida legislature hope to accomplish? The statute does not contain a statement of legislative intent, but there are several possibilities, none of which are constitutionally satisfactory. First, it might be argued that the law seeks to promote family health and stability. Then why not mandate drug testing for couples seeking marriage licenses, or for pregnant women? Why not mandate testing for alcohol dependency, the most widespread form of substance abuse?

Perhaps the legislature wishes to ensure that recipients of government largesse do not use tax money to support addiction.  In that case, what are the differentiating characteristics of poor people that justify their being singled out for special governmental intrusion? Why is testing not required of those who receive special property tax exemptions, or disability benefits, or state research grants or tax incentives to move businesses to Florida? Democratic legislators actually introduced amendments to extend the law’s requirements to employees of companies receiving state tax incentives and to recipients of Bright Futures public scholarships and their immediate families. These proposals were withdrawn, but they made their point.

It could be that the state simply wishes to reduce the fiscal burden of the TANF program by weeding out drug abusers. But the legislative analysis does not project any savings from drug testing. Instead, there will be additional and unknown costs to implement the program. And even if a small percentage of potential recipients are determined to be ineligible, the law specifically exempts their children from its penalties and creates a mechanism for appointment of substitute payees to receive the payments on their behalf.

If the law is constitutionally unsound and advances no coherent public policy interests, one is left with the reluctant conclusion that its adoption was primarily motivated by ideology.  And that is perhaps its most disturbing feature.  It effectively marginalizes the poor and criminalizes poverty.  It perpetuates stereotypes and reinforces myths. It degrades and demeans and shames.  It lends support to notions linking poverty with immoral behavior.  It endorses the views of those who say, with the lieutenant governor of South Carolina, that the provision of financial assistance to the poor is equivalent to feeding stray animals because it only encourages breeding.

The poor are not stray dogs.

43 thoughts on “Suspicionless Searches: Florida Targets Welfare Recipients”

  1. Mike Appleton.

    Very interesting/depressing article at that link.

    I am going to need to don my extreme wingnut insane ultrafacist personality so that I can finish reading it with enjoyment.I a

    In the US the ideas of criminality, drug use, poverty and being of the Negro race have become conflated in the minds of most people. Most poor people are white but the rate of grotesquely extreme poverty among descendants of the slaves wrongly freed in that egregious excess of politically correct nanny state dogooding and big government confiscation of property, the abolition of slavery is much higher than among whites.

    When Americans imagine what a poor person looks like they see a brown face of an unmarried Negro welfare queen living off the welfare generated by her brood of children or a dangerous Black male predator about to mug them or steal their DVD players to buy crack. This is the reason US politics is so right wing compared to that of other nations. Most poor white people are so scared of their tax money going to undeserving Black people that they vote for right wing politicians who support an ideology that advantages the ultra rich 1% of the population against the other 99% including themselves.

    It is not just white people that have these negative stereotypes of Black people, many Blacks are as prejudiced against members of their own race. Michelle Alexander points out that the stigma of crime fills the family members of convicted Negro drug felons with such shame that they conceal from their neighbours the fact that a relative is in prison.

    The great thing about laws against normal human behaviour, such as using mind altering chemicals is that so many breaches occur that available resources only allow detection and prosecution of a fraction of them. It is easy to skew the enforcement according to the prejudices of the respectable classes. Army of occupation policing of the places where poor Black and Brown people live means a much higher rate of detection of drug crime relative to their actual use or trading of drugs than happens to whites in respectable suburbs.

    At every stage of the anti drug justice process Blacks are treated more harshly than whites. I see the process has having at least 8 steps the last of which is sentencing. Even a small bias against Black defendants relative whites compounds up the chain of process steps resulting in the fact that while Blacks are about 11% of the US population, 60% of US prisoners are Black.

  2. “Pay attention, educate yourself, stay informed, live for your own benefit so long as that benefit is not at the cost of another person’s livelihood. Care for your neighbours, live in community and love with others around you, and the government will not be necessary”

    Nicely stated Tucker.

  3. Politically, neither party has the best interest of the entire country at heart. For their morals and ethics I believe they might be thinking of the right things, but not the right ways. The two party system needs to end, the only reason we had a legislative body to begin with is because most men were not educated in the ways of law and voting. That has changed. Congress is no longer needed, what is needed are decent human beings who do right not because they are told to, but because they are raised in a society that respects and nurtures individual choice in all aspects of life. This will no breed poverty, for if you are taught that work=livelihood, you will thrive.

    A government only has the power that its constituents allow it to have; The Constitution was originally designed not to limit the people, but limit the government. The first 4 amendments are all a good society needs. Life, liberty, security, happiness, prosperity, progress. If your legislative body is not capable of seeing to these needs and leaving the rest of your life to your own choice, then they have either overstepped their station, or are useless and need to be replaced.

    As to the matter at hand, if my view of society were true and current, there would be no need for welfare. However, the government of Florida stating that you must subject yourself to testing in order to receive federal monies is downright wrong. We have the same issue here in Indiana. In the recent Legislatures attack on impoverished woman and Planned Parenthood, the state has cut Medicaid funding from only one Medicaid recipient because of one service it offers. HEA 1210 however did not cut funding from out local hospitals, and 12 other clinics in Indiana that provide that service. The bill is in violation of Federal regulations which state you can’t pick and chose who gets funding.

    So, to Florida.. if somebody can’t eat, drive to work, fix a hole in their roof or take their kids to the dentist, the last thing you should be thinking of is telling the whole family to piss in a cup. The American thing to do, the Human thing to do, would be to offer them work in exchange for food, better shelter, and access to the things they need, and help them out of that whole along the way. Christian Charity is dead, it has been replaced by a Bureaucracy that now requires you submit to a litmus test for downtrodden peoples.

    So I ask you whats next? Mandatory testing after each and every ticket or accident we have while driving? Governments do not take over their people overnight, it happens slowly over time.

    Pay attention, educate yourself, stay informed, live for your own benefit so long as that benefit is not at the cost of another person’s livelihood. Care for your neighbours, live in community and love with others around you, and the government will not be necessary.

  4. @T^2 – there is a difference between the income requirements of TANF or the test score requirements of BF and a completely suspicion-less search. The gov’t can set requirements for admission to a program, but not in violation of the Constitution.

  5. The only drugs the government should be worried about welfare recipients using are cigarettes and alcohol. If they’ve got money for such luxuries, they don’t need as much money.

    The only reason to test the poor for illegal drugs – especially when the poor cannot afford drugs – is to line the pockets of corporations who are given taxpayer money to test them.

    The issue here isn’t just the violation and degradation of the poor, it’s government pork and a waste of taxpayers’ money. The working class won’t care about the poor, but they will care if they’re told their money is being given away to companies by politicians who took bribes.

  6. Carlyle Moulton,

    “But does that mean that the interests that the DLC represents no longer control the party.”

    I don’t know … you tell us.

  7. Swarthmore Mum.

    “The DLC folded in February.”

    But does that mean that the interests that the DLC represents no longer control the party.

  8. Just a question. Is TANF a fundamental right of every citizen?. If not, then can the people who provide the money then put in requirements for receiving the money? What if my family makes just over the amount that would allow us to qualify for TANF. Can I argue that the legislature’s denial of my right to receive funds, when I believe that I should be able to receive them,is unconstitutional? Because of his test scores, my child only qualifies for a 75% Bright Futures scholarship, not a 100% one. Can I argue that this requirement is unfair? Going along with the state’s desire to cut spending, can the state simply decide that no one will be eligible for TANF, regardless of income or results of a drug test?

    Sorry, I am not a lawyer. I have been enjoying the many comments that I see on these stories, but I do not always understand what makes somethings right and other things wrong.

    As another example, I work in Florida and was made to sign a loyalty oath when I first started working for the state. I have still never figured out why I had to sign something that, if I was not loyal, I would then find easy to lie about. However, this was clearly upheld by the court years ago.

  9. Swarthmore Mum, Blouise.

    “He is being redistricted by the republicans”. That is INDEED TRUE.

    The facts that the Democratic Party is extremely right wing and that the Republican Party is trying to get rid of Democratic representatives by using the gerrymander are NOT MUTUALLY EXCLUSIVE.

    Liberals who cling to the Democrats are letting hope and obsolete experience cloud their judgment.

    That is enough angry blogging for me for a while. I had better quit before I explode and take half a suburb with me. Good day/night to you all.

  10. Kucinich is not being purged by the democrats. He is being redistricted by the republicans.

  11. Carlyle Moulton,

    ““Sherrod Brown, Dennis Kucinich” are part of a minority that is being purged from the party”

    I’ll pass that along to them … they’ll appreciate the heads-up.

  12. Blouise.

    “Sherrod Brown, Dennis Kucinich” are part of a minority that is being purged from the party, in the same way that sane Republicans have been purged from their party.

    Read this Alternet article by Kevin Drum it says things better than I can.

    The fact is that extreme right wing DLC Democrats are happy for the unwanted liberals, workers and poor people organizing and voting for them but they do not feel any need to reward them while they are shuffling further rightwardn an attempt to draw better quality voters away from the Republican party.

    One cannot do anything effective to change reality if one is not aware of what it is, which is the reason so many social problems are intractable. The vast majority of American voters need either to recapture the Democratic party apparatus from the DLC elite or start a new party.

  13. I think Rahm Emmanuel is having a great time liberating himself in Chicago … no grass growing under his feet.

  14. … of course both Brown and Kucinich have been around since the 70’s …

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